Brown & Anor v Governor of Her Majesty's Prison Saughton

Friday, 9th May 2003

1. LORD JUSTICE SCOTT BAKER: The two applicants are in custody in Scotland and are the subject of extradition proceedings in Scotland. Mr Macdonald has appeared before us this morning. He has no right of audience, but in the particular circumstances, and there being no objection from Mr Lewis QC who has appeared today for the Lord Advocate and the Government of Estonia, we have heard Mr Macdonald make submissions to us.

2. The Government of Estonia has asked for the extradition of the two applicants for offences of drug trafficking. Authority to proceed in each case was issued on 26th March 2001, and in pursuance of this Sheriff Bell, on 29th March 2001, committed each of them in custody to await the decision of the Scottish Minister.

3. The thrust of Mr Macdonald's submissions is that the people of Scotland have exactly the same rights as the people of England; that, just as in England someone should not be unlawfully detained, so in Scotland someone should not be unlawfully detained. His submission is that because the writ of habeas corpus does not run in Scotland, there is a lacuna and these two applicants have no remedy, and, therefore, on analysis, the true position is that habeas corpus should in this case apply in Scotland and that the appropriate order should be made by this court.

4. The thrust of the underlying complaint, as I understand it, is that the committal was made by Sheriff Bell, who is a Sheriff rather than a Sheriff Principal, which is required by the appropriate legislation in Scotland. Therefore, the order is defective and the Scottish courts should have intervened.

5. Section 11 of the Extradition Act 1989 runs as follows:

"11-(1) Where a person is committed under section 9 above, the court shall inform him in ordinary language of his right to make an application for habeas corpus, and shall forthwith give notice of the committal to the Secretary of State."

Section 11(6) provides:

"In the application of this section to Scotland references to an application for habeas corpus shall be construed as references to an application for review of the order of committal and references to the High Court shall be construed as references to the High Court of Justiciary."

6. So the position is that the Extradition Act applies both to England and Scotland, but the vehicle for securing release of somebody who is unlawfully detained is habeas corpus in England but review in Scotland.

7. I am quite unpersuaded on the material that I have seen that there is any material difference in practice in Scotland, but that, however, is not relevant to the issue of jurisdiction which this court has to consider.

8. Both applicants are presently detained, as I have said, in Scotland in Her Majesty's Prison in Saughton. What business has a Divisional Court to interfere with the proceedings that are currently underway in Scotland? In my judgment, none whatsoever. First, the Extradition Act 1989 is drafted in such a manner as to make plain that although the Act applies both to England and Scotland, English cases are dealt with in England and Scottish cases in Scotland; not least this is apparent from section 11(6), but it is also clear from numerous other references in the Act to which it is unnecessary to refer. If further authority is required, it is, in my judgment, to be found in Article XIX of the Act of Union of 1706. This provides, so far as is material for present purposes:

"... And that no causes in Scotland be cognoscible by the courts of Chancery Queen's Bench Common Pleas or any other court in Westminster Hall and that the said courts or any other of the like nature after the union shall have no power to cognosce review or alter the acts or sentences of the judicatures within Scotland or stop the execution of the same..."

That article was considered by this court in R v Commissioner of the Metropolis ex parte Bennett[1995] 3 All ER 248, where Rose LJ held that the Divisional Court could not intervene with the execution of a Scottish warrant in England. Therefore, it seems to me plainly to follow that this court has no jurisdiction to review the decision of Sheriff Bell. Rose LJ said at page 254 of that report:

"But it seems to me, on proper analysis, that this court does not have jurisdiction in the present case for two reasons. First, the 1706 Act does not permit it. I am unable to read art XIX of the Act, and in particular the words 'stop the execution of the same', in the limited sense for which Mr Newman contends. The co-existence of separate but equal legal systems which the 1706 Act prescribes must, it seems to me, absent any sign of contrary intention, contemplate the execution of Scottish process unimpeded by the English court."

9. Mr Lewis drew our attention to the second edition of "The Law of Habeas Corpus" by Mr RJ Sharpe, and in particular the paragraph dealing with the territorial ambit of habeas corpus. At page 191 at "(c) British Isles" subheading "Scotland" the passage reads as follows:

"The English writ of habeas corpus does not run to Scotland. Before the union of the thrones in 1603 under the Stuarts, Scotland was regarded as a foreign country and was not a dominion of the crown of England. The union of the crowns meant that Scots were no longer regarded as aliens since they bore allegiance to a common sovereign, but union did not extend the prerogative of the English crown to Scotland. Scotland remained a foreign dominion of the prince who succeeded to the English throne, and the union of crowns provided no basis on which habeas corpus could run. The Act of Union 1706, provided for a united Parliament and the continuation of a common King under the Hanovers and their successors, but still did not alter the distinction between England and Scotland for the purposes of the prerogative writs. Scots law was expressly preserved, and it was provided that no cause in Scotland was cognizable in the English courts."

10. It seems to me that that is an entirely correct statement of the legal position. It is necessary to refer only to one authority, Rex v Cowle, 3rd July 1759, where the authority was no less than Lord Mansfield, who delivered the opinion of the court, the significant aspect of it being that this court, and that includes the Divisional Court, has no power to send any writ of any kind. We cannot send a habeas corpus to Scotland.

11. In these circumstances, it seems to me that this application by Mr Macdonald on behalf of Mr Wright and Mr Brown is entirely misconceived and must be rejected.

12. MR JUSTICE PITCHFORD: I agree.